F I L E D

United States Court of Appeals

Tenth Circuit

JAN 6 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CRAIG CLYMORE, also known as

James Burchell, also known as Steve

Brown, also known as Kevin Riley,

also known as Wayne Samuel Powell,

also known as Cliff G. Wilson,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 97-2319

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. C.V.-96-763-JC/RLP)

Submitted on the briefs:

Craig Clymore, Plaintiff-Appellant, pro se.

John J. Kelly, United States Attorney, and Stephen R. Kotz, Assistant

U.S. Attorney, Albuquerque, New Mexico, for Defendant-Appellee.

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

EBEL , Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

-2-

Plaintiff appellant, Craig Clymore, pled guilty to conspiracy to knowingly

and intentionally possess with intent to distribute more than 100 kilograms of

marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B) and 18 U.S.C.

§ 2. Sometime after his incarceration, Clymore, proceeding pro se, filed a motion

for return of property pursuant to Fed. R. Crim. P. 41(e) seeking the return of nine

items of property forfeited in various state and federal proceedings. The district

court adopted the report and recommendation of the magistrate judge denying

Clymore’s motion for summary judgment and granting that of the government. 

However, contrary to the magistrate judge’s recommendation that only some of

Clymore’s claims be dismissed with prejudice, the district court dismissed all

claims with prejudice. On appeal, Clymore raises various challenges to the

conclusions of the district court.1

 We address those issues in order.

I.

We review the grant or denial of summary judgment

de novo, applying the same legal standard used by the

district court pursuant to Fed. R. C.V. P. 56(c). 

Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions
-3-

on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of

law. When applying this standard, we examine the

factual record and reasonable inferences therefrom in the

light most favorable to the party opposing summary

judgment. If there is no genuine issue of material fact in

dispute, then we next determine if the substantive law

was correctly applied by the district court.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted).

As did the district court, we separate the nine forfeited items into four

distinct categories. The first category consists of items subject to judicial

forfeiture: a 1990 Honda Accord judicially forfeited in 1991 in the United States

District Court for the Eastern District of Washington, and two items forfeited

in New Mexico state judicial proceedings -- a Cessna TU 206 aircraft Tail

No. N2691X and a 1988 Ford truck. The district court, citing United States v.

Madden, 95 F.3d 38 (10th Cir. 1996), held that Rule 41(e) could not be used to

contest judicial forfeitures. Clymore argues that, while this may be the case with

regard to federal judicial forfeitures, Rule 41(e) is still available to challenge

state judicial forfeitures. We disagree.

Initially, we note that Rule 41(e) is an equitable remedy, see Floyd v.

United States , 860 F.2d 999, 1003 (10th Cir. 1988), available to Mr. Clymore only

if he can show irreparable harm and an inadequate remedy at law, see id.; see also

Blinder, Robinson & Co. v. United States (In re 6455 S. Yosemite) , 897 F.2d
-4-

1549, 1556 (10th Cir. 1990) (same with pre-indictment 41(e) motion). Assuming

Mr. Clymore has state avenues of relief open to him, he cannot show

an inadequate remedy at law.

Apart from principles of equity, however, there are some limited

circumstances under which Rule 41(e) can be used as a vehicle to petition for the

return of property seized by state authorities. Those circumstances include actual

federal possession of the property forfeited by the state, constructive federal

possession where the property was considered evidence in the federal prosecution,

or instances where property was seized by state officials acting at the direction of

federal authorities in an agency capacity. See United States v. Solis, 108 F.3d

722, 722-23 (7th Cir. 1997) (denying Rule 41(e) motion where there was no

evidence of federal possession or federal direction of state seizure); see also

United States v. White, 718 F.2d 260, 261 (8th Cir. 1983) (denying Rule 41(e)

motion where United States did not have possession of property); cf. United

States v. Fabela-Garcia, 753 F. Supp. 326, 328 (D. Utah 1989) (finding federal

constructive possession where state had deferred to the United States “in all

aspects of the prosecution”).

In his reply brief, Clymore attaches various documents establishing

the involvement of federal law enforcement officers with his prosecution and

conviction. None of those documents, however, specifically refer to the property
2 Clymore cites United States v. Deninno, 103 F.3d 82 (10th Cir. 1996), to

support his argument that Rule 41(e) can apply to state judicial forfeitures. While

the Deninno defendant’s Rule 41(e) motion sought the return of property seized

both administratively by the Drug Enforcement Administration (DEA) and

judicially by the state of Oklahoma, the Deninno opinion focuses exclusively on

state and federal administrative forfeiture. See id. at 82 (“Although we find the

record insufficient to hold the administrative forfeitures procedurally valid, we

dismiss Mr. Deninno’s Rule 41(e) motion because it failed to offer any legal basis

for the return of the forfeited property.”) (emphasis added). We refuse to read

Deninno to suggest that Rule 41(e) can be used to challenge state judicial

forfeitures.

-5-

at issue. Clymore’s assertion that federal authorities controlled the ongoing

investigation and were “involved” in the seizures, without more, is insufficient to

establish the extensive federal possession or control necessary to make Rule 41(e)

the appropriate vehicle by which to recover the state-forfeited property.2

Because the district court did not have subject matter jurisdiction over

the state-forfeited Cessna TU 206 aircraft and the 1988 Ford truck, the claims

regarding them should have been dismissed without prejudice. Upon remand,

the district court is directed to amend its order of dismissal to so indicate.

II.

The second category of property identified by the magistrate judge is

approximately $2,000 in United States currency. Because Clymore acknowledges

that this property was judicially seized by the state of New Mexico, his claim for

return of the property pursuant to Rule 41(e) fails for the reasons discussed

above. This claim, too, should have been dismissed without prejudice.
3 The forfeiture procedures relating to the customs laws apply to forfeitures

occasioned by violation of the drug laws. See 21 U.S.C. § 881(d). 19 U.S.C.

§ 1621, the limitations provision for the customs laws, provides:

No suit or action to recover . . . any pecuniary penalty or forfeiture of

property accruing under the customs laws shall be instituted unless

such suit or action is commenced within five years after the time

when the alleged offense was discovered.

-6-

III.

The third category of property consisted of a second Cessna TU 206 aircraft

Tail No. N7352G, $4,510 in United States currency, approximately three million

pesos in Mexican currency, and an ICOM portable transceiver with battery pack. 

These items were the subject of federal administrative forfeiture. The district

court found, and the government conceded, that Clymore had not received

constitutionally adequate notice regarding the forfeiture of these items. The issue

on appeal is what a district court should do under these circumstances when the

statute of limitations prevents commencement of a judicial forfeiture.

Mr. Clymore essentially argues that a forfeiture without adequate notice is

void and that, because the statute of limitations has run against the government,

his property or its value should be returned to him.

3

 The district court examined

the merits of the forfeitures and found that, because Mr. Clymore could not

prevail on the merits, his claims must fail. We reverse.
-7-

In United States v. Rodgers, 108 F.3d 1247 (10th Cir. 1997), this court

found that notice was constitutionally ineffective where the DEA failed to mail

seizure notices to the defendant at a residence known to the agency. See id.

at 1251. The court ordered that the forfeitures be vacated, thus treating the

defective forfeiture as void. See id. at 1255; see also Aero-Medical, Inc. v.

United States, 23 F.3d 328, 331 (10th Cir. 1994) (vacating administrative

forfeiture where notice was inadequate); Armendariz-Mata v. United States Dep’t

of Justice, 82 F.3d 679, 683 (5th Cir. 1996) (same); United States v. Volanty,

79 F.3d 86, 88 (8th Cir. 1996) (noting that “[w]hen an administrative forfeiture is

void for lack of notice, a district court must set aside the forfeiture Declaration

and order DEA either to return [the] property or commence judicial forfeiture in

the district court” (quotation omitted)); United States v. 2751 Peyton Woods

Trail, 66 F.3d 1164, 1166-67 (11th Cir. 1995) (dismissing government’s forfeiture

complaint where petitioner received neither notice nor a hearing before the

issuance of warrants seizing real property); United States v. Giraldo, 45 F.3d 509,

512 (1st Cir. 1995) (“If the notice turns out to have been inadequate, the

forfeiture is void.”). Thus, applying Rodgers, the forfeitures here must be

vacated.

In an effort to avoid this result, the government cites United States v.

Deninno, 103 F.3d 82 (10th Cir. 1996). In that case, the defendant’s Rule 41(e)
-8-

motion asserted that, although he had been served in jail with notice of the

forfeiture of his property, he was deprived of writing materials and postage with

which to object to the proceedings. Defendant’s uncontested allegation thus

established that he had not received constitutionally adequate notice.

Instead of vacating the offending forfeiture and remanding the case, the

panel proceeded to address the merits of the defendant’s motion. After examining

the record, the panel concluded that dismissal was warranted because the

defendant had failed to “offer any plausible legal theories upon which to

challenge the forfeitures.” Id. at 85. The court noted that the defendant had been

convicted of various drug offenses and that “[a]ll of the property at issue in [the]

case was seized from a hotel where Mr. Deninno was carrying out these crimes,”

id. at 86, thus making the property forfeitable under both state and federal

statutes. Because the defendant could “offer [no] reason why the property

at issue [was] not subject to forfeiture,” id., he could not show that he was

prejudiced by the defective notice. The court reasoned that “[u]psetting the

forfeitures because of the alleged procedural faults, when Mr. Deninno appears to

have no basis for the return of the property once the faults are remedied in new

proceedings, would serve no purpose other than to waste limited judicial

resources.” Id. at 86. 
4

Indeed, documents from the Deninno case extant in this court’s files reveal

that Mr. Deninno was arrested in February 1992. The decision in Deninno was

issued in 1996, well within the five-year limitations period. Unless the alleged

offense was discovered well before Mr. Deninno’s arrest, an unlikely scenario,

there should have been ample time for the government to recommence a new

forfeiture action.

5 Any broader reading of Deninno to the effect that constitutionally defective

notice of a forfeiture merely renders the subsequent forfeiture voidable rather

than void would be contrary to our holding in Aero-Medical, Inc. v. United States,

23 F.3d 328, 331 (10th Cir. 1994). Becau

se

AeroMedic

al is

the

earlie

r

opinio

n, it

“const

itutes

bindin

g

circui

(continued...)

-9-

Deninno is distinguishable from this case. As the magistrate judge

acknowledged, there was no statute of limitations problem apparent in Deninno.

4

The panel, therefore, had the option of either remanding the case to the district

court where a judicial forfeiture could be commenced, or examining the merits

of the forfeiture based on the record on appeal. Efficiency dictated the latter

approach, and the government’s failure to provide adequate notice was essentially

viewed as harmless error.5
5

(...continued)

t

prece

dent

constr

aining

subse

quent

panels

absent

en

banc

recon

sidera

tion

or a

supers

eding

contra

ry

decisi

on by

the

Supre

me

Court.

. .

.[Thu

s,]

when

faced

with

an

intracircui t

confli

(continued...)

-10-
5

(...continued)

ct, a

panel

shoul

d

follo

w

earlie

r,

settle

d

prece

dent

over a

subse

quent

deviat

ion

theref

rom.” 

Hayne

s v.

Willia

ms,

88

F.3d

898,

900

n.4

(10th

Cir.

1996)

(citati

ons

omitte

d). 

-11-

No such approach is possible in this case. The forfeiture of which
-12-

Clymore complains is void and must be vacated. See Rodgers, 108 F.3d at 1255;

Aero-Medical, 23 F.3d at 331. Because the statute of limitations has expired,

any finding that constitutional error occurred in the notice procedure would not be

harmless as to Clymore, thus making the Deninno approach unworkable.

 The magistrate judge cited both Rodgers and Deninno, but noted, as

mentioned above, that no statute of limitations issue had been raised in either

case. Relying on Boero v. DEA, 111 F.3d 301 (2d Cir. 1997), and United States

v. Marolf, 973 F. Supp. 1139 (C.D. Cal. 1997), cases which explicitly address the

limitations issue, the district court determined that there was sufficient

information in the record to reject Clymore’s claim on the merits. We disagree

with this approach.

In Boero, 111 F.3d 301, the defendant entered a plea of guilty to

distribution of cocaine and conspiracy to commit kidnaping. Currency seized at

the time of his arrest was eventually administratively forfeited by the DEA. The

DEA conceded that the defendant had never received proper notice of the

forfeiture, but the district court held that the defendant’s remedy was via

administrative claims procedures. See id. at 303-04. The Second Circuit

reversed the latter determination, holding that

[t]he court’s findings concerning the impropriety of the forfeiture

gave the court power to correct the deficiency. The court, however,

did not correct the deficiency, and instead allowed Boero to pursue

an administrative remedy, over five years from the date of the initial
-13-

seizure, as if an improper forfeiture had never occurred. . . .

Consignment of Boero to his administrative remedy is contrary

to this Circuit’s civil forfeiture law.

Id. at 305 (citation omitted). As a broad proposition, the court stated that “when

the government is responsible for a known claimant’s inability to present a claim,

through the government’s disregard of its statutory obligation to give notice

(or otherwise), a hearing on the merits is available in the district court.” Id.

at 306. Because the court found that the DEA was responsible for the failure of

notice, the court vacated the judgment “to the extent that the DEA was directed to

commence administrative forfeiture proceedings, and direct[ed] the district court

to consider Boero’s claim on the merits.” Id. at 307. Following Boero, the court

in Marolf, 973 F. Supp. 1139, proceeded to examine the merits of a challenge to

a forfeiture where the limitations period had run against recommencement of any

further forfeiture action.

We respectfully disagree with the Second Circuit’s decision in Boero

insofar as the hearing ordered there examined the merits of the challenged

forfeiture when the original notice was constitutionally deficient and the statute

of limitations had already run. This result is required by our circuit precedent

which holds that a forfeiture accomplished without adequate notice is void and

must be vacated. See Rodgers, 108 F.3d at 1255; Aero-Medical, 23 F.3d at 331. 

As noted above, we are not alone in this view. See Armendariz-Mata, 82 F.3d at
-14-

683; Volanty, 79 F.3d at 88; 2751 Peyton Woods Trail, 66 F.3d at 1166-67;

Giraldo, 45 F.3d at 512.

Where obvious statute of limitations problems exist, we think the offending

forfeiture should be vacated and the statute of limitations allowed to operate,

subject, of course, to any available government arguments against it. As we noted

in Aero-Medical, “[d]ue process protections ought to be diligently enforced, and

by no means relaxed, where a party seeks the traditionally disfavored remedy of

forfeiture.” 23 F.3d at 331 (quotation omitted). We thus reverse the district

court’s grant of summary judgment to the government as to the property

administratively forfeited by the DEA.

IV.

The last item of property at issue is a 1982 Toyota truck seized in a federal

administrative forfeiture in Texas. The district court declined to exercise

ancillary jurisdiction over property seized in another district. We affirm.

Fed. R. Crim. P. 41(e) states, in pertinent part:

A person aggrieved by an unlawful search and seizure or by the

deprivation of property may move the district court for the district

in which the property was seized for the return of the property on

the ground that such person is entitled to lawful possession of the

property.

There is a split in the circuits regarding whether Rule 41(e) motions must

be brought in the district in which the property was seized or in the district in
6 This seems to contradict the first sentence of Rule 41(e) which provides

that:

A person aggrieved by an unlawful search and seizure or by

the deprivation of property may move the district court for the

district in which the property was seized for the return of the

property . . . . 

See also United States v. Garcia, 65 F.3d 17, 20 (4th Cir. 1995) (rejecting

Thompson and characterizing this holding as a “flourish” contrary to the Rule).

-15-

which the criminal proceedings occurred. The Second Circuit in United States v.

Giovanelli, 998 F.2d 116, 118 (2d Cir. 1993), has held that the district court

which had presided over the underlying criminal proceeding had jurisdiction over

a Rule 41(e) motion brought after the conclusion of the criminal matter even

though the property had been seized in a different district. The Eighth Circuit

has carried this reasoning a step further and held that the district court which

had presided over the criminal matter was the only proper district to entertain

a Rule 41(e) motion, implying that the district in which the property had been

seized would not have jurisdiction. See Thompson v. Covington, 47 F.3d 974,

975 (8th Cir. 1995).6

In contrast to these cases, the Fourth Circuit has held that, after the

conclusion of the criminal proceeding, jurisdiction is proper only in the district

in which the property was seized. See United States v. Garcia, 65 F.3d 17, 20
7 Mr. Clymore cites the Tenth Circuit case of United States v. Wingfield,

822 F.2d 1466 (10th Cir. 1987), to urge that the district court should have

exercised ancillary jurisdiction over the Texas truck. Wingfield, however, did not

involve property seized in a jurisdiction different from the one which had

presided over the criminal proceeding. The issue was not whether some other

federal district court would have had jurisdiction over the res, but whether the

trial court continued to have jurisdiction over a subsequent dispute between a

local county agency and the Internal Revenue Service as to rights in the seized

property.

-16-

(4th Cir. 1995) (Murhaghan, C.J., dissenting and arguing that jurisdiction would

be proper in either venue).7

We agree with the Fourth Circuit and hold that, at least in cases where the

underlying criminal proceedings have concluded and the trial court no longer

exercises any control over the subject property, the proper venue for a Rule 41(e)

motion is the district in which the property was seized. We see this interpretation

as conforming more closely to the language of the rule and to the practicalities of

judicial administration. We therefore affirm the district court’s refusal to

exercise ancillary jurisdiction over the Toyota truck. As with the other items

discussed above over which the court had no jurisdiction, this claim should have

been dismissed without prejudice to refile in the district of seizure.

In summary, we AFFIRM the grant of summary judgment to the

government with respect to all items EXCEPT the items discussed in Section III

herein, to wit, the Cessna TU 206 aircraft Tail No. N7352G, $4,510 in United

States currency, approximately three million pesos in Mexican currency, and the
-17-

ICOM portable transceiver with battery pack. We REVERSE the judgment of the

district court as to those items and REMAND for further proceedings consistent

with this opinion. We further REMAND with instructions that the claims for the

return of the 1990 Honda EX-Accord, the Cessna TU aircraft Tail #N2691X, the

1988 Ford Truck, the approximately $2,000 in United States currency, and the

1982 Toyota truck be dismissed without prejudice.

This matter was initially treated in the district court as a motion under

28 U.S.C. § 2255. If this error has not already been corrected, the clerk for the

district court for the district of New Mexico is directed to revise its docket to

reflect that this case is brought pursuant to Fed. R. Crim. P. 41(e).